Welcome to this Canadian Studies blog. Its an on-line, on-going open letter on subjects that interest me or seem important to Canada. I welcome comments and criticism, but not flames.

Monday, March 30, 2015

Naming Bigotry or Sharia Law Comes to Indiana

There is good news and bad news for those of us watching the American state of Indiana after its recently passed law that makes it legal to refuse service to GLBT on the basis of one's personal beliefs. Oddly, this is very similar to what Christian doctors and dentists are asking for in Canada. If their views happen to infringe on who you are, some group that describes itself -- shakily I might add -- as "Christian" is claiming that they can deny you that right. Oddly enough the issue also turns around sexuality and sexual identity, which might be the subject for a more sustained analysis than I can give to it. The bad news is that the law passed. If you are gay and walk into a restaurant in Indiana, the staff can say "leave, you're gay. It is legal to refuse to serve and we are." The good news is that just about everyone and their dog dislikes this law. Charles Barkley and Reggie Miller -- two individuals who have been hardly known for their politics -- have made strong statements against it. Likewise, a number of large corporations, some cities, and NFL have issued statements in opposition. The NCAA has noted that it may move its events out of the state if this law persists. I don't know whether they will or they will not but I am heartened to see groups and individuals politicizing around this issue. You can do far worse than stand up for equality.

What I'd like to do in this blog is a number of things. I have been writing a series of blogs about the current historical juncture at which Canadian Christianity finds itself. This issue is peripherally related because, as I just suggested, it is, in effect, what a group of doctors are trying to do in Canada. They are claiming that their religious freedom gives them the right to deny care to people on the basis of their personal views. What I'd like to do is the following:

1. Acknowledge that the Indiana law (one of a series that have been brought forward recently in the US) is in the US. Hence, it is likely not my place as a Canadian to say anything about it. I would, however, like to say something clearly and unequivocally as a Christian.

2. I'd like to suggest that this type of law is odd in the sense that it does legitimize prejudice under the rubric or freedom of religion, which was never the intention of freedom of religion laws or embedded constitutional rights, at least in Canada. I do not think it can be upheld upon court challenge if such a law were to pass some legislature in Canada and I'd like to explain why. Hence, I am also say that the suppose Christian doctors who want to deny care are not going to win their case.

3. Finally, I want to make a note of what this kind of case suggests or implies for Canada.

First things first: I said this is a previous blog but Christian is not about defending one's personal values. Indeed, Christian is about challenging those values. It is not about asserting that one is more moral or right or proper than another person. If you doubt me ... read some scripture. It is not about imposing a morality on society or claiming that society should follow your morality. In other words, I am deeply concerned that Christians are using God to justify their own prejudices and I don't think this helps our case at all. In fact, it makes us look like a bunch of bigots who have no time for people with whom we have personal disagreements based on *our* values. It is the wrong approach and one that Christians should reject. Christianity is about many things. I'd like to believe that is about love, relationships, care of the other, putting God first in one's life, and other things. But, it is not about bigotry or helping to defend or justify bigotry and it is never about providing the state with a religious rationale that justifies or upholds the marginalization of others. It is about breaking those bounds; not drawing the line tighter. We need more Christians to stand up and deny this law. We should not let someone justify their bigotry with recourse to God.

Second, that said, as I was thinking over this issue this weekend, what struck was the similarities between this law and the proponents of state enforced Sharia law in Canada. In Canada, a few years ago, we had a big (overblown) to do about whether or not the state should enforce Sharia law for the Muslim community. That debate still awaits a detailed and sophisticated analysis. Only a very small number of Muslims with more extreme views supported this idea (the state enforcing Sharia law) but it triggered a broad debate in the public sphere, the conclusion of which was this: the state should not enforce private religious beliefs. It is not the state's job to impose religious views on society by making them part of a public legal system. There was broad and deep agreement on this point ... when we were talking about Muslims.

Interestingly, when it comes to talking about Christians ... people seem to stop disagreeing, at least so vehemently and they stop using the same argument. Instead, the tenor of the debate shifts. We are no longer talking about the state enforcing religious law but about a person's religious freedom. In other words, the principle is the same, even if the discourse is different. I'd argue the same point, though. If the state should have no truck or trade with Sharia law; it should have no truck or trade with Christian law.

The argument about "religious freedom" is made to seem a bit more palatable because it sounds like we are defending a freedom: the right of a person to practice their religion. But, by that raises a very slippery and dangerous question that was fully discussed in Canada with the debate over Sharia law. One of one's religious freedom requires the subjugation of others? Can they make that case? Is that not, in fact, one of the aspects of the life under the Taliban that we (Canadians and Americans) supposedly opposed? The exercise of religious freedom required the subjugation of women. Neither the governments of Canada nor the US accepted this and, in fact, used it to defend the military action against the Taliban. Refusing to serve someone a sandwich may not be the same thing but the principle is the same, is it not? Where my freedom of religion runs up against someone else's equality and freedom ... their equality and freedom must go.

The problem with this situation, of course, is pretty obvious. It does something much more than smuggle prejudice in through the back door. It drags it right in the front door, in full view, and sets up two standards. One for straight people; one for gay people. The law, in other words, falls unevenly across society and affects different people in different ways. And, this is the primary resource that I do not think that Canadian courts will ever accept this law or some variant of this law.

The Canadian Constitution (the Charter, in particular) guarantees Canadians something that the American Bill is a bit uncertain of: equality before the law and equal treatment of the law. I'm not trying to shoot the US down here; I'm trying to highlight a difference between Canada and the US. In the US, there is clearly a constitutional guarantee to equality. This has been the ground on which US courts have struck down laws banning same sex marriage. A right one person enjoys under law cannot be denied to another person. Canada goes further. We have the same principle (coming out of the same legal heritage) but we have a guarantee of equal benefit of the law.

What does this this mean? Years ago, when gay and lesbian Canadians first campaigned for equality in marriage, the crown mounted a rather interesting defense that was, briefly, accepted by the courts. It went like this: a prohibition on same sex marriage is constitutional because gay and lesbian Canadians have the right to marry and it is the same right enjoyed by straight people. They just have to marry someone of the opposite biological sex. Hence, because a gay man can marry a woman (for example) ... his right to equality is satisfied.

The Canadian constitution and jurisprudence no longer accept this patently silly argument because it still upholds prejudice. Straight Canadians have the right to marry who they will (everything here, by the comes with the proviso "provided they are a competent legal adult") but gay and lesbian Canadians do not. The courts quickly recognized this as the crux of the matter: benefit of the law was falling unevenly and falling unevenly in a way that confirmed already established unequal power relations in society. It served to marginalize already marginalized groups and confirm and reinforce the power of groups that were already power. The right to equality had, in other words, stopped being a right to equality and had, instead, become a mechanism through which the state helped to guarantee, maintain, and enforce inequality based on some people's personal views. The courts in Canada, rightly, said "this is not the purpose of equality provisions"

Because the US lacks the same commitment to equal benefit of the law in its constitution as Canada maintains, I suspect that it will be more difficult to eliminate laws that maintain prejudice. It took a long time to eliminate laws that discriminated against blacks, for instance, and I suspect that it will take a while for US courts to make a clear ruling against bigotry. In Canada, I suspect the courts will make that statement early. In other words, the US situation should not be the Canadian situation and this is not just wishful thinking on my part. The differences in the constitutional guarantees of equality are significant enough and nuanced enough that it should be difficult to use the law to enforce private religious views.